King. v. Hubbard

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LAURA KING ET AL. v. MATTHEW HUBBARD
(AC 44600)
Moll, Suarez and Seeley, Js.
Syllabus
Pursuant to statute (§ 52-196a), in a civil action in which a party files a
complaint against an opposing party that is based on the opposing party’s
exercise of its right of free speech in connection with a matter of public
concern, the opposing party may file a special motion to dismiss the
complaint, and, if the trial court grants the motion to dismiss, the oppos-
ing party is entitled to costs and reasonable attorney’s fees. The plaintiffs,
L and R, sought the issuance of an injunction against the defendant,
restraining him from making or publishing any statements about either
plaintiff, or about a nonprofit charitable foundation for which L served
as a consultant, or about a private club where R worked as an executive
chef. The plaintiffs alleged that comments made by the defendant in a
post on the private club’s Facebook page regarding a fundraising event
to be held at the club for the foundation constituted defamation and
an invasion of privacy. The defendant was a cofounder of the foundation
and a former member of its board of directors. The defendant filed a
special motion to dismiss the complaint in its entirety pursuant to § 52-
196a, claiming that each count in the complaint was based on his exercise
of his right of free speech in connection with a matter of public concern
and that he should be awarded costs and reasonable attorney’s fees.
Prior to the deadline for filing opposition filings, the plaintiffs voluntarily
withdrew the action. Thereafter, the defendant filed a motion to restore
the case to the docket, arguing that, pursuant to statute (§ 52-80), the
plaintiffs were required to obtain permission of the court to withdraw
the action after establishing cause. The plaintiffs objected, asserting,
inter alia, that they had a unilateral right to withdraw their action pursu-
ant to § 52-80, as a hearing on the merits or a hearing on an issue of
fact had not commenced. The trial court denied the defendant’s motion
to restore, finding that, at the time the plaintiffs withdrew their action,
the plaintiffs’ time frame for responding to the special motion to dismiss
had not passed and no consideration of the special motion to dismiss
or its accompanying affidavit by the presiding authority had begun. The
court further declined to exercise its discretion to restore the action to
the active docket. On the defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the trial court abused
its discretion when it denied his motion to restore the action to the
active docket:
a. The defendant’s claim that the plaintiffs’ right to withdraw their action
unilaterally ceased when he filed the motion to dismiss with an accompa-
nying affidavit was unavailing as the court did not have an opportunity
to initiate a formal proceeding in which it would make a substantive
determination concerning the legal or factual issues presented in the
special motion to dismiss and, accordingly, the plaintiffs were within
their rights to unilaterally withdraw the action pursuant to § 52-80.
b. Contrary to the defendant’s claim, by filing a special motion to dismiss
pursuant to § 52-196a, he did not acquire a vested right to have the court
consider that motion and his request for attorney’s fees, this court,
giving effect to both §§ 52-196a and 52-80, as required by statute (§ 1-
2z), concluded that the right to a hearing on a defendant’s special motion
to dismiss is subject to a plaintiff’s absolute right to withdraw an action
at any time prior to a hearing, and, interpreting § 52-196a in this manner,
consistent with its plain meaning and its relationship to § 52-80, did not
yield an absurd or unworkable result; moreover, to the extent that the
defendant urged this court to consider the legislative intent underlying
§ 52-196a and to construe the statute such that a right to have the court
consider the merits of a special motion to dismiss is not subject to a
plaintiff’s unilateral right to withdraw prior to a hearing, such a method
of statutory analysis runs afoul of § 1-2z, the interpretation suggested
by the defendant would require this court to insert an exception into
§ 52-80 that is not expressly stated therein, such an exception would
contravene the broad right to unilaterally withdraw an action that is
conferred by § 52-80 that applies, by the statute’s plain terms, to any
action returned to court and entered in the docket, and the plain language
of § 52-196a requires the court to grant the moving party attorney’s fees
only if the court considers the merits of the special motion to dismiss
and the motion itself is granted.
c. The trial court correctly concluded that the plaintiff’s action was not
the type of action that § 52-196a was enacted to address, as the plaintiffs
did not constitute a powerful private interest, nor were they seeking to
discourage the defendant from petitioning the government, and, even
assuming, arguendo, that the defendant’s Facebook post related to a
matter of public concern, the action reasonably was best characterized
as a dispute between private individuals rather than an attempt to intimi-
date the defendant for strategic purposes related to the activities of the
foundation; moreover, the defendant’s characterization of the trial court’s
reasoning was belied by that court’s admonition that its ruling should
not be interpreted to suggest that citizens do not have the right to
challenge the propriety of charitable fundraising practices.
2. This court declined the defendant’s request to fashion a procedural mecha-
nism to guide trial courts in the event that an issue similar to the
issue raised in this appeal arises again and to establish a rebuttable
presumption that a withdrawal filed in response to a special motion to
dismiss pursuant to § 52-196a was filed to avoid an adverse ruling
because, as our established case law recognizes, the issue of whether
to restore a case to the active docket is best entrusted to the sound
discretion of the trial court and evaluated on a case-by-case basis.
Argued May 17, 2022—officially released January 10, 2023
Procedural History
Action seeking, inter alia, a permanent injunction
barring the defendant from making or publishing certain
statements, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the defendant filed a special motion to dismiss;
thereafter, the plaintiffs withdrew their action; subse-
quently, the court, Genuario, J., denied the defendant’s
motion to restore the case to the docket and rendered
judgment thereon, from which the defendant appealed
to this court. Affirmed.
Anthony R. Minchella, for the appellant (defendant).
Anthony J. Febles, for the appellees (plaintiffs).
Opinion
SUAREZ, J. The defendant, Matthew Hubbard,
appeals from the judgment of the trial court denying
his motion to restore to the active docket a civil action
that was brought against him by the plaintiffs, Laura
King and Richard King, and later voluntarily withdrawn.
The defendant claims that (1) the court abused its dis-
cretion when it denied his motion to restore the action
to the active docket and (2) this court should fashion
a procedural mechanism to guide trial courts when a
plaintiff withdraws an action in response to a special
motion to dismiss pursuant to General Statutes § 52-
196a, which affords protection against so-called SLAPP
lawsuits.1 We affirm the judgment of the court.
The following procedural history is relevant to the
claims raised on appeal. On July 9, 2020, the plaintiffs
filed an application for an ex parte temporary injunction
and an order to show cause together with a verified
complaint. The verified complaint alleged the following
facts. The Catherine V. Hubbard Foundation (CVHF)
is a nonprofit charitable foundation dedicated to the
memory of the defendant’s daughter, a child victim of
the Sandy Hook mass school shooting. Laura King is a
consultant to CVHF. The Stanwich Club, a nonparty
private social organization, employed Richard King as
its executive chef. ‘‘On June 27, 2020, the defendant
published a publicly viewable statement on the Stan-
wich Club’s Facebook page commenting on a CVHF
benefit golf tournament that the Stanwich Club [would]
be hosting on July 16, 2020.’’ In commenting negatively
on the event, the defendant posted as follows: ‘‘To make
this [CVHF event] even more corrupt, Richard King who
is the chef and [whose] wife [works] for the foundation
gets paid [$75,000] a year . . . the highest paid consul-
tant for the foundation. Shame on the club and shame
on [CVHF] [a]gain for not being transparent. . . .’’
In count one of the verified complaint, the plaintiffs
alleged that ‘‘[b]y publicly and falsely describing this
event as ‘corrupt,’ chastising the Stanwich Club for host-
ing the event, and wrongfully associating the plaintiff
Richard King and his wife, the plaintiff Laura King, with
an event [the defendant] described as ‘corrupt,’ [the
defendant] has caused or is likely to cause reputational
harm to each plaintiff in that this statement will lower
them in the estimation of the community or deter third
persons from associating or dealing with them.’’ The
plaintiffs further alleged that the statements made by
the defendant were not privileged and were published
to third parties. In count two, Laura King alleged that
she ‘‘had an expectation of privacy with respect to her
compensation from CVHF.’’ She further alleged that her
compensation was confidential information, that the
defendant ‘‘had a continuing obligation to protect th[at]
confidential and private information,’’ that its disclo-
sure was ‘‘not a matter of legitimate public concern,’’
and that the defendant invaded her privacy ‘‘by publicly
disclosing’’ this information.2 She alleged irreparable
harm as the disclosure ‘‘will impact her continued work
with CVHF as well as her ability to consult for other
organizations.’’ By way of relief, the plaintiffs requested
the issuance of ‘‘[a]n ex parte temporary and permanent
injunction restraining [the defendant] from making or
publishing any statements about either plaintiff, the
Stanwich Club or CVHF. . . .’’
On July 9, 2020, the court denied the application for
an ex parte temporary injunction and scheduled the
matter for a hearing at a date to be determined. On July
15, 2020, the court scheduled a remote hearing on the
application for a temporary injunction to be held on
August 11, 2020. On August 10, 2020, the defendant
filed a caseflow request in which he requested that
the hearing be converted ‘‘into a status or scheduling
conference.’’ The court granted the motion and, on
August 11, 2020, held a remote status conference.
On August 27, 2020, the defendant filed a special
motion to dismiss the complaint pursuant to § 52-196a,3
together with a memorandum of law and a supporting
affidavit. In his motion to dismiss, the defendant
asserted that each count in the complaint was ‘‘based
on [the defendant’s] exercise of rights protected under
§ 52-196a—namely, his right of free speech in connec-
tion with a matter of public concern—and [that the]
plaintiffs [could not] show probable cause that they
[would] prevail upon the merits of their claims.’’ The
defendant argued that the complaint should be dis-
missed in its entirety pursuant to § 52-196a (e) (3) and
the defendant should be awarded costs and reasonable
attorney’s fees pursuant to § 52-196a (f) (1). In the
accompanying affidavit, the defendant attested that the
factual statements he had made concerning the CVHF
event and the plaintiffs were truthful.
On August 31, 2020, the court issued a scheduling
order in which it noted that the defendant had filed
a special motion to dismiss, and it ordered that any
opposition briefs, affidavits, or exhibits were to be filed
on or before September 15, 2020. The court further
ordered that any reply to the opposition filings was to
be filed on or before September 21, 2020. The court
ultimately ordered that a hearing on the defendant’s
special motion to dismiss was to be held on September
24, 2020. On September 4, 2020, four days after the court
issued its scheduling order, the plaintiffs withdrew the
action.
On October 1, 2020, the defendant filed a motion to
restore the case to the docket and a memorandum of
law in support thereof.4 In the defendant’s memoran-
dum of law, he first asserted that, ‘‘[o]nce [the defen-
dant] filed his special motion to dismiss, his right to
attorney’s fees and costs became vested (or, minimally,
his right to have the court determine his entitlement to
fees and costs), and the plaintiffs’ unilateral withdrawal
‘unduly jeopardized that right and the proper adminis-
tration of justice.’ ’’
Additionally, the defendant argued that a hearing on
an issue of fact had commenced when he filed his
motion to dismiss, and, therefore, pursuant to General
Statutes § 52-80, the plaintiffs were required to obtain
permission of the court to withdraw the action after
establishing cause.5 He argued that, when ruling on a
special motion to dismiss pursuant to § 52-196a, the
court is required to consider the pleadings and support-
ing and opposing affidavits of the parties attesting to
the facts upon which liability or a defense, as the case
may be, is based. Therefore, the defendant claimed that
the affidavit that he submitted with the special motion
to dismiss was testimony that the court was required
to consider under § 52-196a, and, thus, a hearing com-
menced upon its submission to the court.
The plaintiffs filed an objection to the motion to
restore, as well as an accompanying memorandum of
law. In their memorandum of law, the plaintiffs argued
that the action was brought to enjoin the defendant
from further engaging in unprotected speech that was
injurious to the plaintiffs’ good names and reputations.
Additionally, they argued that they had a unilateral right
to withdraw their action pursuant to § 52-80 as a hearing
on the merits or, alternatively, a hearing on an issue of
fact, had not commenced. The plaintiffs argued that
they did not abuse their right to withdraw the action
only to avoid an adverse ruling. They maintained that,
had the hearing occurred, they would have ‘‘set forth
with particularity the circumstances giving rise to the
complaint and demonstrated probable cause within the
meaning of . . . § 52-196[a].’’ Finally, the plaintiffs
asserted that the defendant was not entitled to attor-
ney’s fees because, under § 52-196a, such fees may only
be awarded after the granting of a special motion to
dismiss.
The court held a hearing on the defendant’s motion
to restore on December 1, 2020, at which both parties
presented oral arguments. On March 2, 2021, the court
issued a memorandum of decision denying the motion
to restore. In its memorandum of decision, the court
noted that a hearing of fact does not commence until
‘‘the presiding authority begins its consideration of the
merits of the claim.’’ It also noted that, at the time
the plaintiffs withdrew their action, ‘‘the plaintiffs’ time
frame for responding to the special motion to dismiss
had not passed and no consideration of the special
motion to dismiss or affidavit by the presiding authority
had begun.’’ The court concluded that, in light of the
fact that a hearing on an issue of fact had not com-
menced, the plaintiffs had a unilateral right to withdraw
the action.
Having determined that the plaintiffs were entitled
to unilaterally withdraw their action, the court then
considered whether to exercise its discretion to restore
the action to the active docket. In doing so, the court
noted that, although ‘‘[i]n many circumstances, [it] . . .
would be inclined [to] exercise its discretion and restore
a case to the docket to allow a SLAPP defendant the
opportunity to recover attorney’s fees and costs,’’ this
was not such a case. The court concluded that its ‘‘deci-
sion [was] quite fact specific and not intended to reflect
a reluctance to restore cases to the docket to provide
SLAPP defendants with the relief provided by . . . [§]
52-196a when appropriate’’ and that its ‘‘decision should
not be construed one way or another to reflect on the
merits of the underlying case or to suggest that citizens
do not have the right to challenge the propriety of chari-
table fundraising practices.’’
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
First, the defendant claims that the court abused its
discretion when it denied his motion to restore the
action to the active docket. We interpret the defendant’s
brief, which is not a model of clarity, to encompass
four distinct subclaims related to the court’s denial of
the motion to restore. First, the defendant argues that
the court should have granted the motion to restore
because the plaintiffs’ unilateral withdrawal, which was
intended to avoid an unfavorable ruling, prejudiced his
vested rights to have the court consider the merits of
the special motion to dismiss and request for attorney’s
fees.6 Second, the defendant argues that the court
should have granted the motion to restore because a
hearing on an issue of fact had commenced by the time
of the withdrawal of the action and, thus, the plaintiffs
did not have a unilateral right to withdraw the action
but needed leave of court to do so. Third, the defendant
argues that, in denying the motion to restore, the court
either misconstrued or misapplied § 52-196a to afford
protection to those who petition the government but
not to those who exercise their right to free speech,
thereby minimizing his constitutional rights as com-
pared to other SLAPP defendants. Finally, the defendant
argues that this court should reverse the trial court’s
judgment and direct the trial court to grant the motion
to restore, grant the motion to dismiss, and hold a
hearing on the defendant’s request for attorney’s fees
and costs.7 We are not persuaded.
Before we address the merits of those subclaims, we
first set forth our standard of review of a trial court’s
denial of a motion to restore an action to the active
docket. ‘‘This court has stated previously that [t]he
question of whether a case should be restored to the
docket is one of judicial discretion . . . therefore, we
review a court’s denial of a motion to restore a case to
the docket for abuse of that discretion. . . . Discretion
means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to subserve
and not to impede or defeat the ends of substantial
justice. . . . Inherent in the concept of judicial discre-
tion is the idea of choice and a determination between
competing considerations. . . . A court’s discretion
must be informed by the policies that the relevant stat-
ute is intended to advance. . . . When reviewing
claims under an abuse of discretion standard, the
unquestioned rule is that great weight is due to the
action of the trial court . . . . Under that standard, we
must make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Our] review of
such rulings is limited to the questions of whether the
trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Palumbo v. Barbadimos, 163 Conn. App. 100, 110–11,
134 A.3d 696 (2016); see also Doe v. Bemer, 215 Conn.
App. 504, 512–13, 283 A.3d 1074 (2022) (‘‘[t]he question
of whether a case should be restored to the docket is
one of judicial discretion’’ (internal quotation marks
omitted)).
A
We first address the defendant’s assertion that a hear-
ing on an issue of fact had commenced by the time that
the plaintiffs voluntarily withdrew the action and, thus,
the plaintiffs did not have a unilateral right to withdraw
the action but needed leave of court to do so. The
defendant argues that the plaintiffs’ right to withdraw
their action unilaterally ceased when he filed his special
motion to dismiss with the accompanying affidavit. We
are not persuaded.
By statute, a ‘‘plaintiff may withdraw any action
[returned to court] and entered in the docket of any
court, before the commencement of a hearing on the
merits thereof. After the commencement of a hearing
on an issue of fact in any such action, the plaintiff may
withdraw such action . . . only by leave of court for
cause shown.’’ General Statutes § 52-80. ‘‘This court
often has used, without further explication, the phrase
‘absolute and unconditional’ to describe a plaintiff’s
right under § 52-80 to withdraw an action before a hear-
ing on the merits has occurred. . . . We construe this
broad language, however, as reflecting only that, prior
to a hearing on the merits, the withdrawal of an action
does not require the permission of the court.’’ (Citations
omitted.) Palumbo v. Barbadimos, supra, 163 Conn.
App. 111–12.
In Kendall v. Commissioner of Correction, 162 Conn.
App. 23, 130 A.3d 268 (2015), this court, in the context
of a habeas petition, conducted an extensive statutory
analysis concerning the issue of when a hearing on the
merits has commenced pursuant to § 52-80. It reasoned
that, ‘‘with respect to a hearing on the merits, a party’s
right to unilaterally withdraw an action or petition
ceases when the presiding authority begins or initiates
formally a proceeding in which it will make a substan-
tive determination concerning the legal or factual issues
in the case. Both contemporaneous understandings of
the word ‘hearing’ and the present definition of ‘hearing
on the merits’ recognize the role of evidence, testimony,
and argument in the ultimate determination that the
court is called to make. . . . [A]pplying the word ‘mer-
its,’ as construed through applicable dictionaries . . .
to the ‘hearing’ in question demonstrates that the pro-
ceeding must concern the facts and law governing the
strict legal rights of the parties as opposed to merely
procedural or ancillary matters.’’ Id., 42–43.
As previously noted, in the present case, the defen-
dant filed his special motion to dismiss on August 27,
2020. On August 31, 2020, the court issued a scheduling
order in which it noted that a special motion to dismiss
was filed and ordered that any opposition briefs, affida-
vits, and exhibits were to be filed no later than Septem-
ber 15, 2020. The court further ordered that any reply
to the opposition was to be filed no later than September
21, 2020. A hearing on the special motion to dismiss
was scheduled for September 24, 2020. On September
4, 2020, four days after the court issued its scheduling
order, the plaintiffs withdrew the action prior to filing
any opposition brief or affidavits. The court, therefore,
did not have an opportunity to initiate a formal proceed-
ing in which it would make a substantive determination
concerning the legal or factual issues presented in the
special motion to dismiss. The court merely had
addressed a procedural matter. Moreover, the court
noted in its memorandum of decision that, at the time
of the withdrawal, ‘‘no consideration of the special
motion to dismiss or affidavit by the presiding authority
had begun.’’ In light of the foregoing, we conclude that
the plaintiffs were within their rights to unilaterally
withdraw the action pursuant to § 52-80. The defendant
has failed to demonstrate that the court abused its dis-
cretion in denying the motion to restore based on an
improper withdrawal of the action.
B
Next, the defendant argues that the court should have
granted the motion to restore because the plaintiffs’
unilateral withdrawal, which was intended to avoid an
unfavorable ruling, prejudiced his vested rights to have
the court consider the merits of the special motion to
dismiss and request for attorney’s fees. The defendant
asserts that, once he filed his special motion to dismiss,
his rights to attorney’s fees and costs, or, at the very
least, his right to have the court determine his entitle-
ment to fees and costs, vested. Relying heavily on
Palumbo v. Barbadimos, supra, 163 Conn. App. 100,
the defendant argues that the plaintiffs’ unilateral with-
drawal of the action unduly jeopardized his rights and
the proper administration of justice. We are not per-
suaded.
In Palumbo, this court noted that ‘‘[t]he broad lan-
guage used by this court to describe a plaintiff’s right
to withdraw an action must be read in conjunction with
other cases that make clear that the right of withdrawal
may be trumped in certain circumstances by another
party’s right to restore the case to the docket. . . . Any
lack of authority of the court to stop the withdrawal
of an action prior to a hearing on the merits in the
first instance, for example, in no way extends to or
diminishes the court’s power to restore a previously
withdrawn action to the docket. . . . This is particu-
larly true if restoration of the action is necessary to
vindicate a right acquired by another party during the
course of the withdrawn litigation. . . .
‘‘[O]ur Supreme Court [has] stated that [e]very action
may be withdrawn prior to verdict or final judgment,
whenever it can be done without injuriously affecting
rights of the defendant acquired by reason of the action.
. . . Our Superior Courts have relied on that language
as a basis for restoring cases to the docket in which a
plaintiff’s voluntary withdrawal threatened a right that
was acquired by the defendant in the withdrawn litiga-
tion or was done to undermine an adverse court rul-
ing. . . .
‘‘Although this court previously has affirmed a trial
court’s denial of a defendant’s motion to restore a volun-
tarily withdrawn action to the docket, in doing so, it
also recognized the trial court’s inherent authority to
restore such an action to the docket if necessary to
vindicate a right vested in the defendant. . . .
‘‘A plaintiff should never be permitted to abuse its
right to voluntarily withdraw an action. Such abuse may
be found if, in executing its right of withdrawal, the
plaintiff unduly prejudices the rights of an opposing
party or the withdrawal interferes with the court’s abil-
ity to control its docket or to enforce its rulings.’’ (Cita-
tions omitted; emphasis in original; footnotes omitted;
internal quotation marks omitted.) Id., 112–15.
In Palumbo, the plaintiff brought a personal injury
action but later ‘‘had withdrawn the action unilaterally
and filed a second, identical action to avoid a bench
trial that was the consequence of the plaintiff having
missed the statutorily prescribed deadline for claiming
the action to the jury trial list.’’ Id., 102. The defendant
filed a motion to restore the original action to the
docket, which the trial court denied. Id., 106, 109. This
court, after recognizing that a plaintiff enjoys a right
to withdraw litigation unilaterally prior to a hearing
on an issue of fact, ‘‘nonetheless conclude[d] that the
procedural chicanery engaged in by the plaintiff . . .
cannot be sanctioned because it offends the orderly and
due administration of justice. At the time the plaintiff
withdrew the original action, she effectively had waived
her right to elect a jury trial, and thereby vested in the
defendant the right to have the parties’ dispute tried to
the court. The plaintiff was not entitled to abuse her
right of unilateral withdrawal in order to pursue a sec-
ond, identical action to avoid the consequences of her
waiver.’’ Id., 103–104. Accordingly, in Palumbo, this
court concluded that the trial court’s denial of the defen-
dant’s motion to restore reflected an abuse of its discre-
tion, reversed the judgment of the trial court, and
remanded the case to the trial court with direction to
grant the defendant’s motion to restore the original
action to the docket. Id., 121.
In the present case, the defendant’s claim is not that
the plaintiffs have engaged in similar procedural chica-
nery. Rather, it is reasonable to interpret the defendant’s
claim to be that, upon his filing of a special motion to
dismiss, § 52-196a, in and of itself, afforded him a vested
right to have the court consider the merits of the special
motion to dismiss and attorney’s fees. The defendant’s
argument is premised on his belief that the underlying
purpose of § 52-196a is to ‘‘provide relief, including
financial relief, to persons who have been victimized
by meritless lawsuits’’ and that ‘‘allowing the plaintiffs
to withdraw their lawsuit before a hearing on the defen-
dant’s special motion to dismiss essentially weaponizes
the anti-SLAPP statute against the party it is intended
to protect.’’8
The plaintiffs argue that, under § 52-196a, attorney’s
fees are awarded ‘‘only ‘[i]f the court grants [the] special
motion to dismiss . . . .’ ’’ (Emphasis in original.) The
plaintiffs contend that, in light of the fact that a hearing
was not held on the special motion to dismiss, the
defendant was unable to satisfy the requirements of
either § 52-196a (e) (3) or (f) (1), and he could not
reasonably be found to have any right, vested or other-
wise, in his attorney’s fees. Additionally, the plaintiffs
assert that their action is not ‘‘intended to quell conduct
consistent with constitutional rights nor [is it] a mer-
itless retaliatory suit . . . .’’ Therefore, they argue, the
suit is not the type of action the legislature sought to
prevent when it enacted § 52-196a.
Whether the act of filing a special motion to dismiss
pursuant to § 52-196a vests in a defendant the right to
have the court consider the merits of the special motion
to dismiss and the right to attorney’s fees is an issue
of statutory construction and, therefore, ‘‘subject to
plenary review and well established principles.’’ (Inter-
nal quotation marks omitted.) Canton v. Cadle Proper-
ties of Connecticut, Inc., 188 Conn. App. 36, 45, 204
A.3d 62 (2019). General Statutes § 1-2z instructs that
‘‘[t]he meaning of a statute shall, in the first instance,
be ascertained from the text of the statute itself and
its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’
Section 52-196a (e) (1) provides in relevant part that
‘‘[t]he court shall conduct an expedited hearing on a
special motion to dismiss . . . not later than sixty days
after the date of filing of such special motion to dismiss
. . . .’’ The plain and unambiguous language of the stat-
ute affords a party a right to a hearing within sixty days.
As previously noted, § 52-80 provides in relevant part
that a ‘‘plaintiff may withdraw any action [returned to
court] and entered in the docket of any court, before
the commencement of a hearing on the merits thereof.
After the commencement of a hearing on an issue of
fact in any such action, the plaintiff may withdraw such
action, or any other party thereto may withdraw any
cross complaint or counterclaim filed therein by him,
only by leave of court for cause shown.’’
Under the directive of § 1-2z, in interpreting § 52-
196a, this court must not only be mindful of § 52-80 but
also must interpret § 52-196a in a manner that does
not conflict with § 52-80. ‘‘[T]he legislature is always
presumed to have created a harmonious and consistent
body of law . . . . [T]his tenet of statutory construc-
tion . . . requires [this court] to read statutes together
when they relate to the same subject matter . . . .
Accordingly, [i]n determining the meaning of a statute
. . . we look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction.’’ (Internal quotation marks
omitted.) 500 North Avenue, LLC v. Planning Commis-
sion, 199 Conn. App. 115, 130, 235 A.3d 526, cert. denied,
335 Conn. 959, 239 A.3d 320 (2020). ‘‘[W]hen construing
a statute, we do not interpret some clauses in a manner
that nullifies others, but rather read the statute as a
whole and so as to reconcile all parts as far as possible.’’
(Internal quotation marks omitted.) Vibert v. Board of
Education, 260 Conn. 167, 171, 793 A.2d 1076 (2002);
see also Perun v. Danbury, 143 Conn. App. 313, 317,
67 A.3d 1018 (2013).
Because we are bound to give effect to both statutes,
we construe the right to a hearing on a defendant’s
special motion to dismiss, which is afforded by § 52-
196a, as being subject to a plaintiff’s absolute right to
withdraw an action at any time prior to a hearing, as
afforded by § 52-80. Interpreting § 52-196a in this man-
ner, consistent with its plain meaning and its relation-
ship to § 52-80, does not yield an absurd or unworkable
result. We conclude, therefore, that, at the time of the
plaintiffs’ withdrawal of their action in the present case,
the defendant did not have the right to have the court
consider the merits of the special motion to dismiss.
To the extent that the defendant urges us to consider
the legislative intent underlying § 52-196a and to con-
strue the statute such that a right to have the court
consider the merits of a special motion to dismiss is
not subject to a plaintiff’s unilateral right to withdraw
prior to a hearing, such a method of statutory analysis
runs afoul of § 1-2z. Moreover, to follow the interpreta-
tion suggested by the defendant would require us to
insert an exception into § 52-80 that is not expressly
stated therein. This exception would contravene the
broad right to unilaterally withdraw an action that is
conferred by § 52-80 that applies, by the statute’s plain
terms, to ‘‘any action returned to court and entered in
the docket . . . .’’ (Emphasis added.) ‘‘It is the duty of
the court to interpret statutes as they are written . . .
and not by construction read into statutes provisions
which are not clearly stated.’’ (Internal quotation marks
omitted.) Garvey v. Valencis, 177 Conn. App. 578, 586–
87, 173 A.3d 51 (2017).
With respect to the defendant’s alleged vested right
to attorney’s fees, § 52-196a (f) (1) provides in relevant
part that, ‘‘[i]f the court grants a special motion to dis-
miss under this section, the court shall award the mov-
ing party costs and reasonable attorney’s fees . . . .’’
It can hardly be disputed that the plain language of the
statute requires the court to grant the moving party
attorney’s fees only if the court considers the merits
of the special motion to dismiss and the motion itself
is granted. Construing the statute according to its plain
meaning does not yield an absurd or unworkable result.
We conclude that the defendant did not acquire a vested
right to attorney’s fees by merely filing a special motion
to dismiss pursuant to § 52-196a.
For the foregoing reasons, we conclude that the
defendant has not demonstrated that the court’s ruling
prejudiced a vested right such that the court abused its
discretion by denying his motion to restore.
C
Next, the defendant challenges the court’s denial of
the motion to restore on the ground that, in denying
the motion to restore, the court either misconstrued or
misapplied § 52-196a to afford protection to those who
petition the government but not to those who exercise
their right to free speech, thereby minimizing his consti-
tutional rights as compared to other SLAPP defendants.
We are not persuaded.
As stated previously in this opinion, we review the
court’s exercise of discretion in denying the motion to
restore mindful that ‘‘[d]iscretion means a legal discre-
tion, to be exercised in conformity with the spirit of
the law and in a manner to subserve and not to impede
or defeat the ends of substantial justice’’ and that ‘‘[a]
court’s discretion must be informed by the policies that
the relevant statute is intended to advance.’’ (Internal
quotation marks omitted.) Palumbo v. Barbadimos,
supra, 163 Conn. App. 110–11.
In the present case, in its memorandum of decision,
the court stated that ‘‘[t]he legislative history [of § 52-
196a] and [this court’s discussion of SLAPP lawsuits in
Field v. Kearns, 43 Conn. App. 265, 682 A.2d 148, cert.
denied, 239 Conn. 942, 684 A.2d 711 (1996)] reflect a
desire to prevent those who use litigation strategically
to quell conduct consistent with a party’s constitutional
rights from doing so with impunity. A frequent example
of the wrong sought to be addressed is the hypothetical
developer with substantial resources trying to discour-
age average citizens from contesting a proposal before
a local or state governmental entity. SLAPP suits are
most insidious when a powerful private interest seeks
to discourage or intimidate citizens from petitioning
their government or impacting public opinion. The
instant case is not such a case. While this court believes
that a citizen such as the defendant has every right to
bring to the attention of the public concerns about the
legitimacy of fundraising by a not-for-profit entity, in
this case the defendant in so doing seemed to implicate
the plaintiffs, one of [whose] only connection to the
controversy was his long-term employment with the
entity providing a venue for the event. The other plain-
tiff is a private contractor, who is not a principal of the
charitable organization about which the defendant has
expressed concern. This case does not seem to have
any of the indicia of the type of strategic litigation that
the legislature expressed a desire to address. There is
no indication of an attempt to intimidate the defendant
by the plaintiffs who seem to have been unfortunately
drawn into an ongoing dispute between CVHF and the
defendant. Upon further consideration, the plaintiffs
have simply elected to withdraw their action in a man-
ner consistent with the long-established policy of
allowing plaintiffs to unilaterally withdraw cases and
put an end to litigation that they had previously initi-
ated. From the court’s point of view, sometimes it is
just better to let litigation end quickly, and this is one
such situation. . . .
‘‘In denying this motion to restore the case to the
docket, the court wishes to emphasize two things. First,
this decision is quite fact specific and not intended to
reflect a reluctance to restore cases to the docket to
provide SLAPP defendants with the relief provided by
[§] 52-196a when appropriate; and second, this decision
should not be construed one way or another to reflect
on the merits of the underlying case or to suggest that
citizens do not have the right to challenge the propriety
of charitable fundraising practices.’’
The defendant argues that the court improperly inter-
preted his action as being essentially a private dispute
between him and the plaintiffs instead of an action
related to the charitable fundraising activities of CVHF,
which is an issue of public concern. The defendant also
argues that the court misconstrued the policy that the
legislature sought to promote by reasoning that § 52-
196a did not afford the same protection to his right to
free speech that it affords to defendants who petition
the government.
As we have stated previously in this opinion, our
Supreme Court has delineated the elements of a SLAPP
action, ‘‘the distinctive elements of [which] are (1) a
civil complaint (2) filed against a nongovernment indi-
vidual (3) because of their communications to govern-
ment bodies (4) that involves a substantive issue of
some public concern. . . . The purpose of a SLAPP
suit is to punish and intimidate citizens who petition
state agencies and have the ultimate effect of chilling
any such action.’’ (Internal quotation marks omitted.)
Lafferty v. Jones, 336 Conn. 332, 337 n.4, 246 A.3d 429(2020), cert. denied, U.S. , 141 S. Ct. 2467, 209
L. Ed. 2d 529 (2021). In the present case, the court
correctly concluded that the plaintiff’s action was not
the type of action § 52-196a was enacted to address.
The court aptly observed that, in the present action,
the plaintiffs did not constitute a powerful private inter-
est, nor were they seeking to discourage the defendant
from petitioning the government. There appears to be
no dispute that neither plaintiff was a principal of CVHF,
had standing to protect the interests of CVHF, or had
initiated the present action in response to the defen-
dant’s communication to a governmental body. The
communications at issue were made publicly on a social
network service, not to a governmental body. Even
assuming, arguendo, that the defendant’s Facebook
post concerning the CVHF event related to a matter of
public concern, the action reasonably is best character-
ized as a dispute between private individuals rather
than an attempt to intimidate the defendant for strategic
purposes related to the activities of CVHF. We note,
further, that the defendant’s characterization of the
court’s reasoning is belied by the court’s admonition
that its ruling should not be interpreted ‘‘to suggest that
citizens do not have the right to challenge the propriety
of charitable fundraising practices.’’
In light of the foregoing, we conclude that the court
did not abuse its broad discretion in denying the motion
to restore.
II
Last, the defendant claims that this ‘‘court can fashion
a procedural mechanism to guide trial courts’’ in the
event that an issue similar to the issue raised in this
appeal arises again. Specifically, he suggests that we
‘‘should adopt a rebuttable presumption that [a] with-
drawal [filed in response to a special motion to dismiss
pursuant to § 52-196a] was filed to avoid an adverse
ruling.’’ We conclude that such a presumption is unnec-
essary. As our established case law recognizes, the issue
of whether to restore a case to the active docket is best
entrusted to the sound discretion of the trial court and
evaluated on a case-by-case basis.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Section 52-196a provides statutory protection against what has become
known in our jurisprudence as a SLAPP lawsuit. ‘‘SLAPP is an acronym for
strategic lawsuit against public participation, the distinctive elements of
[which] are (1) a civil complaint (2) filed against a nongovernment individual
(3) because of their communications to government bodies (4) that involves
a substantive issue of some public concern. . . . The purpose of a SLAPP
suit is to punish and intimidate citizens who petition state agencies and
have the ultimate effect of chilling any such action.’’ (Internal quotation
marks omitted.) Lafferty v. Jones, 336 Conn. 332, 337 n.4, 246 A.3d 429(2020), cert. denied, U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021).
‘‘Under this statutory scheme, a party may file a special motion to dismiss
when the opposing party’s complaint is based on the moving party’s exercise
of, among other things, the right of free speech or the right to petition the
government in connection with a matter of public concern. See General
Statutes § 52-196a (b); see also General Statutes § 52-196a (e) (3) (describing
circumstances under which trial court must grant party’s special motion to
dismiss). Although the statutory protection against SLAPP lawsuits does
not create a substantive right, the procedural mechanism that § 52-196a
establishes, namely, the special motion to dismiss, provides a moving party
with the opportunity to have the lawsuit dismissed early in the proceeding
and stays all discovery, pending the trial court’s resolution of the special
motion to dismiss. See General Statutes § 52-196a (d). If the court grants
the special motion to dismiss, the moving party is also entitled to costs and
reasonable attorney’s fees.’’ Priore v. Haig, 344 Conn. 636, 659, 280 A.3d
402 (2022).
2
The defendant is a cofounder and a former member of the CVHF board
of directors.
3
General Statutes § 52-196a provides in relevant part: ‘‘(b) In any civil
action in which a party files a complaint, counterclaim or cross claim against
an opposing party that is based on the opposing party’s exercise of its right
of free speech, right to petition the government, or right of association under
the Constitution of the United States or the Constitution of the state in
connection with a matter of public concern, such opposing party may file
a special motion to dismiss the complaint, counterclaim or cross claim. . . .
‘‘(e) (1) The court shall conduct an expedited hearing on a special motion
to dismiss. The expedited hearing shall be held not later than sixty days
after the date of filing of such special motion to dismiss . . . .
‘‘(2) When ruling on a special motion to dismiss, the court shall consider
pleadings and supporting and opposing affidavits of the parties attesting to
the facts upon which liability or a defense, as the case may be, is based. . . .’’
4
Attached to the defendant’s memorandum in support of his motion to
restore was a letter, purportedly sent by his counsel to the plaintiffs’ counsel
via email on July 31, 2020, stating that, if the plaintiffs did not withdraw
the action, the defendant would file a special motion to dismiss the action
pursuant to § 52-196a.
5
General Statutes § 52-80 provides in relevant part: ‘‘The plaintiff may
withdraw any action so returned to and entered in the docket of any court,
before the commencement of a hearing on the merits thereof. After the
commencement of a hearing on an issue of fact in any such action, the
plaintiff may withdraw such action, or any other party thereto may withdraw
any cross complaint or counterclaim filed therein by him, only by leave of
court for cause shown.’’
6
We note that, at various points in his brief, the defendant asserts that
he had a right to a ‘‘hearing’’ and a right to have the court ‘‘rule’’ on the special
motion to dismiss. We interpret the substance of his appellate argument to
implicate his right to have the court consider the merits of the special motion
to dismiss.
7
We will address these subclaims in a different order than the one in
which they appear in the defendant’s brief. We observe that the fourth
subclaim relates to the remedy sought by the defendant should he prevail
on the merits of his claim. In light of our conclusion that the court did not
abuse its discretion in not restoring the action to the active docket, we need
not address the merits of this subclaim.
8
The defendant relies on a California Court of Appeal case, Liu v. Moore,
69 Cal. App. 4th 745, 81 Cal. Rptr. 2d 807 (1999), in which the court reversed
a trial court’s decision not to award attorney’s fees to an individual who
was named as a defendant in a third-party cross complaint after the cross
complaint plaintiffs withdrew their complaint following the individual’s filing
of a special motion to strike pursuant to California’s anti-SLAPP statute.
Specifically, the defendant points out that the California Court of Appeal
reasoned that ‘‘SLAPP plaintiffs could achieve most of their objective with
little risk—by filing a SLAPP suit, forcing the defendant to incur the effort
and expense of preparing a special motion to strike, then dismissing the
action without prejudice. The specter of the action being refiled . . . would
continue to have a significant chilling effect on the defendant’s exercise of
its [f]irst [a]mendment rights.’’ (Internal quotation marks omitted.) Id., 753.
The defendant urges us to follow this approach in the present case, and he
argues that the court’s decision was not ‘‘ ‘informed by the policies that the
relevant statute is intended to advance.’ Vargas v. Doe, 96 Conn. App. 399,
409 [900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006)].’’
We are not persuaded to follow Liu, which is not binding on this court.
Nor do we analyze the issue before us by first considering the legislative
policy underlying § 52-196a. Rather, as is reflected in our discussion of this
subclaim, we are able to resolve the present issue by undertaking an analysis
of the plain meaning of the statutes at issue pursuant to General Statutes
§ 1-2z.